Family Solicitors

In a recent case, a wife contested the court’s decision to grant an order, made under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA), for the sale of her and her husband’s matrimonial home before their divorce was due to be heard.

The couple, who owned the property in equal shares as tenants in common, were already separated and the husband argued that he was no longer able to make payments to his wife and maintain the house.

His wife argued that the order should not have been granted before the divorce hearing, which was due in two months’ time, and that TOLATA proceedings were not suitable for the resolution of issues related to a divorce.

The Court of Appeal held that although it is generally preferable for this sort of issue to be resolved during ancillary relief proceedings (the name lawyers use for the financial arrangements on divorce), this only applies if the ancillary relief hearing is to take place within a reasonable period of time. In this case, the wife had chosen to defend the divorce, which had already delayed the decree nisi, and the couple had already been separated for eighteen months. Furthermore, there was no longer any need for the couple to own a home together and it was very unlikely that the ancillary relief proceedings would result in the wife securing a transfer of the property into her sole name or gaining a life interest in it.

The wife’s appeal against the order was therefore dismissed.

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